Unions fighting police reforms up at #txlege on Thursday

Three bills scheduled for votes on Thursday on the floor of the Texas House are all stand-alone parts of the Texas George Floyd Act: HBs 829, HB 830, and HB 834, and all by state Rep. Senfronia Thompson.

HB 829 requires civil-service cities to create a disciplinary matrix to keep arbitrators from overturning punishment so often.

HB 830 forbids arrests for Class C violations of the Transportation Code.

HB 834 requires corroboration for police officer testimony to secure a drug conviction.

For the most part, we've heard all the union's arguments before. (See links for HBs 830 and 834 for more background on those bills.) But the Combined Law Enforcement Associations of Texas put out a flyer critical of HB 829 which deserves special attention, as it's focused on a less-high-profile topic than the other two. Here's what CLEAT's distributing against the bill: 

Let's respond to the issues raised one by one.

1. CLEAT argues that Texas’ police civil service statute has not been changed since 2005 and decisions about departmental discipline have been left to local union negotiations, which they prefer.

It’s true the Legislature has not revisited the police civil-service statute for many years. Since that time, we’ve had plenty of opportunities to observe how those 2005 revisions played out in the real world. In Fort Worth, about half of fired officers get back on the force. In San Antonio, 70% of fired officers are reinstated. Notoriously, one San Antonio officer was reinstated after being fired for feeding feces between two pieces of bread to a homeless person. Police chiefs need authority to fire officers under such circumstances. HB 829 is a moderate effort to resolve this problem, giving officers, departments, and the public greater certainty about which punishments are reasonable. While the police chiefs association has suggested getting rid of arbitration altogether, Chairwoman Thompson’s bill keeps arbitration and simply provides arbitrators more guidance.

2. CLEAT argues that HB 829 would “severely limit the discretion of cities to negotiate these issues with their officers back home.”

This is disingenuous. The main thing that currently limits cities’ discretion to strengthen disciplinary processes is that, if the only way to do it is through local meet and confer agreements, the unions will never agree. If unions won’t sign off on a police contract, its provisions cannot take effect. It’s inappropriate to limit police discipline through union negotiations. That should be left to local policy and state law. Certainly no government employee union should have veto power over accountability reforms affecting their profession.

3. CLEAT claims the law would offend “the vote of the people who adopted civil service in the first place.”

This argument lacks context. Texas cities mostly adopted civil service in the 1940s and 1950s. The provisions they’re saying the law would change were not in place when voters adopted Chapter 143 of the Local Government Code, but were added many decades afterward at the unions’ behest. If it was okay to change the rules post hoc in 2005, Chairwoman Thompson should be able to do it now.

***

The other two bills up Thursday have received more attention and will likely draw more natural support on the House floor. HB 829, though, is a more deep-in-the-weeds technical issue which has flown relatively under the radar. Here's hoping all three of them move onto the senate without any hiccups.

Police union reps sit down with reform advocate for post mortem on Austin-police-contract fight

On December 13, 2017, a contract negotiated between the Austin police union and city management was voted down by the city council in response to a large community uprising led by the Austin Justice Coalition. After nearly a year-long standoff, the sides came to an agreement in November, with the union agreeing to significant new reforms and $10 million per year less than in the previously negotiated contract.

On December 4th, police union representatives Ron DeLord and Chris Perkins sat down with Chas Moore of the Austin Justice Coalition in Grits' dining room to discuss the 18-month-long struggle to install accountability measures in the Austin police union contract. Excerpts from the discussion were included in a segment in Just Liberty's December 2018 Reasonably Suspicious podcast, but here's the full, 38-minute conversation:

For more background, see these prior, related blog posts and podcast segments:

• Union contract fight gave Austin advocates leverage to improve police oversight
• Austin's police contract among worst in nation from accountability standpoint, says Campaign Zero co-founder
• Podcast: Police unions, collective bargaining and accountability (three segments)
• Interview: Campaign Zero's Sam Sinyangwe
• A primer for police union leaders on 'making the guilty innocent' after high-profile incidents
• Interview: Ron DeLord on the Ferguson Effect, police pensions, and why he considers Saul Alinsky a major influence

Find a transcript of our conversation below the jump.

Podcast: Adversaries over Austin police-union contract sit down; when is it okay for courts to electrocute mentally ill defendants?; pythons as stocking stuffers?; and other stories

When is it okay for a judge to electrocute a mentally ill defendant?

What leverage did a Texas civil rights activist say enabled Austin advocates to force reforms into the city's police-union contract?

How many pet pythons are too many, and are they appropriate to give at Christmas as stocking stuffers?

These and other questions are answered on this month's episode of the Reasonably Suspicious podcast. As always, you can subscribe on iTunes, Google Play, or SoundCloud, or listen to it here:


Here's what's in this month's episode:

Opening: Pythons as stocking stuffers?

Top Story

• Principles for progressive prosecutors

Interview
Police-union negotiators Ron DeLord and Chris Perkins sit down with a now-familiar adversary, Chas Moore of the Austin Justice Coalition, to discuss the aftermath of the year-long fight over the capital city's police-union contract.

Home Court Advantage

• When is it okay to electrocute a mentally ill defendant in court? Discussion of James Calvert oral arguments
• Ken-Paxton prosecutors de-funded, but at what cost to indigent defense?

The Last Hurrah

• Dallas PD officer indicted for murder
• Lawsuit challenges driver surcharges
• Ray Hill, R.I.P.

Find a transcript of the show below the jump.

Union contract fight gave Austin advocates leverage to improve police oversight

Austin Justice Coalition's victory over police union
brings to mind history's greatest upsets

(Updated with background links, photos, and an addendum.)

Although the local media has reported that the Austin police contract was finally approved and activists were happy with the result, only one local TV station report that I saw attempted to parse changes in the contract from a police accountability standpoint.

Advocates' year-long battle resulted in savings of $10 million per year compared to the contract rejected last December, as well as achieving greater transparency about police misconduct, the ability of the Police Monitor to accept anonymous complaints, and an end to the practice downgrading violations after a period of time so that they disappeared from public view (and couldn't be considered by the Chief in the event of future misconduct.)

Activists didn't get all they wanted. Of the six items in Campaign Zero's wish list for accountable police contracts, for example, the Austin Justice Coalition (AJC) and its allies only won one of them. That said, there were other accountability items specific to the Austin contract (e.g., downgrading violations over time) that weren't on Campaign Zero's list, and they were important, too.

Campaign Zero co-founder Sam Sinyangwe with
Austin Justice Coalition co-founder Chas Moore

Compromises notwithstanding, this was a major police-accountability victory. To my knowledge, no police-union contract in the United States, before this one, had been rejected by elected officials because of concerns over police accountability. From the moment the contract was defeated last December, it gave Chas Moore, his AJC compatriots and their allies tremendous leverage; more than police reformers in Austin have had at any time in living memory.

Before the contract defeat, AJC could get no traction for reforming oversight. In the months before last December's marathon hearing, at which the proposed union contract was finally voted down, AJC and allies presented eight reforms to both the City and the police association. The association never sat down with reformers, and the city failed to introduce the ideas into the negotiation process.

But after the entire city witnessed Moore and AJC standing over the defeated police union like Ali looking down at Sonny Liston (shouting "Give us police oversight!" instead of Ali's "Get up and fight, sucker!"), their voices could no longer be ignored.

Campaign Zero's Deray McKesson with the
Austin Justice Coalition policy team in Grits' living room.

The union swapped out their president for a new, co-lead negotiator, who in turn reached out to reformers. With strong, continued interest from council offices, the city rolled the reform proposals into the negotiation and discovered that hanging tougher brought rewards. In the version of the contract finally approved, the oversight mechanisms were moved to a city ordinance and the contract includes a more limited list of issues that required police association buy-in. That not only meant a lower cost. It also put the city council back in control of police oversight instead of giving the police union veto power.

As it happens, my wife was heavily involved in AJC's efforts to influence the contract and create a new oversight system for Austin. In the most recent episode of Just Liberty's Reasonably Suspicious podcast, she outlined the changes made and what comes next. Since the details of the new oversight system have received so little attention, I decided to pull out those comments as a stand-alone segment for anyone interested. Give them a listen:

Next month, both Chas Moore and Ron DeLord, the lead negotiator for the police union, have agreed to a joint interview/conversation on the podcast to describe the process and lessons learned from it, so I'm looking forward to that.

MORE: Chris Harris of Grassroots Leadership posted on Twitter this helpful graphic showing the impact of grassroots advocacy on the police-union contract and civilian oversight in Austin. The left-hand column was the old contract; the middle column is the one rejected by the City Council after a populist uprising last December; and the right-hand column is the new, final contract. Quite an improvement, huh? Especially on the price tag!

For more background, see these prior, related Grits posts:

• Austin's police contract among worst in nation from accountability standpoint, says Campaign Zero co-founder
• Checking in on opposition to the Austin police contract
• Overtime for police court appearances a growing cost driver at Austin PD
• Critiquing Austin's police union contract
• Podcast: Police unions, collective bargaining and accountability (three segments)
• Interview: Campaign Zero's Sam Sinyangwe
• A primer for police union leaders on 'making the guilty innocent' after high-profile incidents
• Snippets of opposition to Austin's police contract
• Uncharted territory: Rejected police union contract leaves open many questions
• Journalists failing to call out official lies in Austin police contract debate
• More one-sided coverage of Austin PD retirements
• Interview: Ron DeLord on the Ferguson Effect, police pensions, and why he considers Saul Alinsky a major influence
• Austin police oversight ineffective, says audit; local media silent on narrative-busting analysis
• Austin police union overplaying its hand by rejecting accountability measures

Austin police union overplaying its hand by rejecting accountability measures

After their President was last seen screaming at city council members for not signing a contract with the Austin Police Association, the union this week rejected all accountability measures proposed by the city, the Austin Statesman reported. 

Their lead negotiator, Ron DeLord (founder of the Combined Law Enforcement Associations of Texas and a friend of the blog), told the paper the union wants more money without any new accountability measures, declaring:

“We are in a position once the city makes a financial offer and gives us some idea of what they want in oversight (that) I think we’ll get a deal or no deal next week,” DeLord said. “That could change, but if the city brings a money offer and we can accept it, I think we’ll reach a deal. If we can’t, there may be no contract, or we’ll continue bargaining.”

This is posturing. The city already told them what oversight measures they want, and DeLord rejected them out of hand. Why in heaven's name would the city pony up more money if the union won't agree to any of the measures they requested? The status quo suits the city just fine.

In years past, the big threat was that the union would oppose city council members in low-turnout municipal elections in which they were a big player. But having moved elections to November and switched to single-member districts, that advantage has largely evaporated. Looking at the various council races on the ballot this fall, reformers are likely to end up with even more City Council support, while no competitive candidate of whom I'm aware is championing the police union's message.

Austin police officers are already the highest paid in the state. There's little danger many will quit to go work for less elsewhere. The rich contracts larded on the union for the last two decades will inevitably, effectively serve as golden handcuffs for the foreseeable future. The union president may be angry, but not angry enough to quit and take another job paying tens of thousands of dollars less.

In other words, the union has no leverage. Police administrators have tried to claim, with their usual "sky is falling" tone, that changes to promotions practices which reverted to state law when the contract fell apart somehow justify giving the union extra money. But the fact is, some 70-plus other civil service cities around Texas operate under the state-law provisions. Even if sub-optimal, it's hard to argue those state-law provisions are some huge problem.

The council members most worried about these human-resources issues are mainly focused on expanding diversity at the department. But if that's the concern, they're barking up the wrong tree, anyway. The old provisions weren't some great diversity panacea! (Witness the police-chief finalist list: one white guy.) If the city wants to improve diversity in its police force, it needn't look to the contract. Instead, the city should focus on changing recruitment practices and setting higher and better hiring goals outside the contract. At current salary levels, APD is a good option for any college graduate who wants to settle down here.

Bottom line: There's nothing the union has that the city needs except acquiescence to the reform proposals that they just flatly rejected. If they want a wage hike, or for that matter if they want their stipends renewed that ceased when the contract ended, union negotiators must accept the accountability changes proposed.

The alternative isn't to get the money without agreeing to any reform measures, it's to go home with nothing, like they did last year. That should play well at the next union leadership election.

Snippets of opposition to Austin's police-union contract

A local Austin activist posted on YouTube some of the testimony from December at the Austin City Council against the police-union contract. (See Grits' writeup after the event.) Your correspondent was one of the speakers in opposition, and I post my testimony here mainly to show off Grits' favorite shirt:

Since Grits had earlier interviewed Campaign Zero's Sam Sinyangwe and highlighted his research on Austin police contract, let's also post his testimony from the same hearing.


And here's Chris Harris, a super-bright, young activist from Grassroots Leadership, who like many others that night did a great job, but who in particular made some excellent, data-based points that the local media have avoided over the many months this contract was being debated:


Go here to watch more testimony from the hearing.

More one-sided MSM reporting on Austin PD retirements

Grits had earlier cited reporting by local journalists over projected retirements by Austin police officers in the wake of the city council rejecting their police-union contract as an example of the local press acting as a mouthpiece for proponents of the contract. The spin before the contract vote was that up to 300 officers could retire if the council didn't approve it, a number Chief Brian Manley amended to up-to-160 on the night of the city-council vote, after touting the higher number for weeks. 

Now, the real numbers are out and KXAN-TV has published the most misleading report yet, again without letting contract critics correct the spin. It turns out, only 33 officers are retiring this month before the new contract terms take effect, or about 5% of the highest, earlier estimates being touted in headlines and TV news stories. Reported KXAN in their lede:

The number of Austin police officers leaving the department spiked this month, nearly doubling the year’s total up to this point. 

At least 33 city police lieutenants, sergeants, detectives, corporals and officers have left the Austin Police Department this month in the wake of City Council’s decision to reject a new union contract two weeks ago. In the first 11 months of the year combined, 43 officers left the department.

So 76 officers will  retire this year, including perhaps a couple of dozen extra retiring at the end of the year because of the rejected contract. How should we judge whether this is significant? From Grits' earlier post on the topic:

So, since we can't expect local reporters to do it, let's go ahead and answer the question, "Is 25-50 retirements significant?" It turns out, according to the annual report from the Austin police officer retirement system (p. 133), 56 officers retired in 2016, and 71 retired in 2015. So even minimalist reporting, checking the most basic facts about the topic in easily accessible public sources, would show that these numbers of retirements aren't really a big deal at all.

From a statistical perspective, this is entirely within normal range, with just five more retirements than in 2015. Yawn!!

Yet at KXAN, this merits the headline, "APD sees big spike in retirements after council rejects new contract"! This, to me, seems almost like intentional bias, promoting sky-is-falling arguments from one side of a public debate while ignoring both data from public sources and credible alternative voices. Could they really be this bad accidentally? I guess it's possible, but ...

Uncharted territory: Rejected police union contract leaves many open questions

The Austin City Council last night unanimously voted against accepting a police-union contract - one that took almost 8 months to negotiate and was approved by 85% of union members - after more than 150 reform supporters, including your correspondent, spoke at a special called meeting to oppose the current version and demand accountability reforms. (More than 220 people signed up to speak against the contract, but the hearing lasted seven hours, late into the evening, and many people had to go home.) See coverage from:

• Austin Statesman
• Austin Chronicle
• Texas Observer
• KVUE-TV
• Fox7-News

These accounts entirely underestimate the import of this vote. Austin's City Council hasn't voted against a union-ratified police contract, ever. Nor have any other American city rejected a union contract on accountability grounds, as far as I can tell. (In Portland, when civil rights advocates protested their contract, they were pepper sprayed and sent on their way.)

Crowd who stayed for the vote at end of a 7-hour meeting

The vote creates, for the first time in two decades, an opportunity to improve police oversight in Austin, which was ineffective at best and a public embarrassment at worst. None of the local coverage has effectively plumbed the depths of the issues at stake, typically portraying one young activist - the Austin Justice Coalition's Chas Moore - as some lone-wolf critic instead of the voice of a massive, city-wide accountability movement.

Local advocates led by the Austin Justice Coalition (conflict alert: my wife Kathy Mitchell was among the campaign's principle organizers) attended every negotiation session, researched the issues thoroughly before engaging, organized their asses off in dozens of various forums, meetings, and events, and arrived at the denouement last night loaded for bear. 

The Austin Police Association and city management presented a united front in defense of the contract, but struggled to defend the pricetag -- more than $80 million over five years to give raises and bonuses to a police force that's already the highest paid in the state. A core group of council members clearly were disturbed by the lack of accountability measures demanded by the community. (AJC had proposed eight measures; one was fully implemented, one partially, the others were ignored.) The entire council was unhappy that the exorbitant cost of the contract would squeeze out spending in all other areas of the budget for the next five years.

That mix of advocates' frustration with police abuse, coupled with Council's frustration at having so little money to keep the pools open or even add new police officers, tipped the vote away from the deal. 

The union had said that if the council rejected the contract they would not come back to the negotiating table for a year. But there's too much money at stake so I don't see that happening. Their members would lose a lot of goodies, including sweet overtime deals for court appearances. 

The council's motion last night gave city negotiators unto March 22, 2018 to come back with an amended agreement that was cheaper and included more accountability reforms. And with that unanimous vote, the city, the union, and police reformers move into uncharted territory.

Critiquing proposed Austin police union contract

The Austin Justice Coalition has compiled a comprehensive summary of criticisms of the local police union contract as the union votes this week and the city council prepares for a pivotal vote in early December. Here's a discussion from the October episode of Just Liberty's Reasonably Suspicious podcast, with accompanying graphics from Sukyi McMahon:


For more background, check out a speech from Campaign Zero's Sam Sinyangwe (audio/transcript) and his power point materials critiquing Austin's contract, from an accountability perspective, as among the worst in the country.

What is a DA's role in dictating police overtime pay?

Over the summer, Grits highlighted perverse incentives created by overtime rules in police union contracts that give officers extra pay for time they appear in court, honing in on the subject in July's Reasonably Suspicious podcast. Some officers have gamed the system to extract exorbitant amounts of overtime pay which not infrequently can exceed an officer's annual salary.

So I was interested to see in coverage of the Philadelphia DA's race this tidbit about why the local police union opposed the ultimately victorious reform candidate:

Why is [the union] so afraid to see [Larry] Krasner as Philly’s head prosectuor? Because he will lose the ability to protect “bad apples” and their overtime pay. 

According to Open Data Philly, in 2016 some police officers and detectives earned $100,000 in overtime, more than doubling their salary. The way most police officers make overtime is by appearing in court. If the DA’s office brings charges after an arrest, the cop will most likely be called to testify. In Philadelphia, every time officers appear in court off-shift, they receive a minimum of two hours of overtime pay. This is a clear financial incentive for cops to arrest as many people as possible, and might explain why in 2016 one in four pedestrian stops made by Philadelphia police was deemed unconstitutional. 

Krasner’s campaign platform pledges that he will “end this practice [stop-and-frisk] by refusing to bring to trial cases stemming from illegal frisks and searches.” McNesby’s main concern as a union representative is the compensation of FOP members. Unfortunately, those members work in a system that rewards civil rights violations. Cops who abuse civil rights to increase their salary will be hurt if Krasner is the next DA.

Your correspondent had not heretofore made the connection between local DA policies and the ability of police officers to max out overtime. Not only do cities incentivize court time through contracts, but DAs through scheduling conceivably could have an enormous impact on how much overtime a given officer makes. I hadn't considered that.

Regardless, this is evidence that officers gaming the system to maximize overtime pay for court appearances isn't just a Houston, or an Austin, or just a Texas problem, but instead is something with which many cities are struggling. They get these overly generous provisions in their contracts, then act surprised when officers behave in a way to maximize their own self interest. But the officers ultimately are not the ones to blame. Rather, those who allowed such policies to be enacted in the first place are primarily culpable for the problem. And in many cases, it can only be rectified once every few years when the union contract comes up for renewal.

Austin's police contract among worst in nation from accountability standpoint, says Campaign Zero cofounder

Campaign Zero's Sam Sinyangwe was in town this week to lobby the Austin City Council for reforms in its meet and confer agreement, fresh off of being honored  at Forbes 30 Under 30 gathering (and trolling Warren Buffett on Twitter in the process). We'll publish an interview with Sam in next month's Reasonably Suspicious podcast, but in the meantime, here's a recording of a speech he gave Thursday evening at the Windsor Park Library in Austin, introduced by Chas Moore of the Austin Justice Coalition. (Chas' remarks were a bit crackly, but the audio clears up once Sam starts speaking.)


And here's his presentation:


Find a transcript of his speech after the jump.

Perverse incentives created by police overtime for court appearances

The Texas Court of Criminal Appeals last month issued an opinion in Ex Parte Mark Bowman, with a dissent from Judge Elsa Alcala, that caught Grits' eye - not because of the issues being decided in the case but thanks to the underlying fact pattern evinced in the discussion.

At issue was a 2004 DWI in Houston and whether the defense counsel was alleged to be ineffective. The evidence of counsel's ineffectiveness? Because of Houston PD overtime rules, the officer had an incentive to arrest people for DWI even if the cases were later dismissed because he received time-and-a-half for the hours he spent in court.

The officer, William Lindsey, testified that members of the DWI task force were "paid overtime, time-and-a-half" for all hours spent in court, giving him a personal financial motive to go to court whether or not an arrest is legitimate. In the prior year, he said, he'd made 476 DWI arrests.

In his habeas writ, the defendant was able to show that Officer Lindsey, from 1992 to 2004, made more money from combined overtime pay than he did from his regular salary. According to the majority opinion, "In the first eleven months of 2004 - the year of Appellant's first DWI arrest - Lindsey earned a total of $145,957, of which only $63,924 was regular salary while $82,032 was paid overtime."

For a while, Lindsey was the highest paid officer in the city. He retired after reporters began to question the situation in 2006. (See contemporary Grits coverage.)

Three criminal defense lawyers, including Doug Murphy, a DWI specialist, testified that failure to secure details about Lindsey's economic incentives amounted to ineffective assistance.  From Murphy's affidavit:

It is common knowledge among lawyers in Harris County who regularly handle DWI cases during Lindsey's tenure on the DWI Task Force that he arrested many people in affluent parts of southwest Houston - regardless of how well they performed the field sobriety tests or how sober they appeared to be on videotape - so he could obtain overtime pay for appearing in court pursuant to a subpoena to testify at their trials. Competent defense lawyers made Public Information Act requests to HPD to obtain Lindsey's payroll records before they tried DWI cases in which he would testify.

Further, wrote Mr. Murphy:

Defense lawyers would present this evidence on cross-examination to demonstrate Lindsey's motive for making the arrest. They typically would argue that Lindsey arrested sober drivers for DWI because he knew that they would go to trial and he would receive overtime pay for appearing in court to testify; that, for this reason, he gave no driver the benefit of the doubt at the scene; that, in effect, he received three days of pay for appearing at a two-day trial; that he received the money even if the defendant were acquitted; and that his overtime pay exceeded his regular pay during his tenure on the task force. Arguments of this nature frequently persuaded juries to reject Lindsey's opinion regarding intoxication.

The other two attorneys' affidavits included essentially similar comments.

A Houston Chronicle story from July 1, 2006* mentioned a "memo ... from a traffic enforcement captain warning that officers were scheming to have themselves unnecessarily placed on court dockets to inflate their overtime totals." So these allegations were coming from HPD brass, not just defense lawyers or the media.

Let's leave aside for a moment the question of whether defense counsel was ineffective, which is the focus of the two opinions. Grits instead wants to raise other questions: Is it good public policy for police officers to have an incentive to make dubious arrests so they can get overtime to show up in court? If testifying is part of a police officer's job, why can't they do it during regular work hours? Is there a way to pay for court time that doesn't contribute counterproductive incentives?

In Austin, the meet and confer agreement (Art. 8, Sec. 3) specifies particularly generous extra pay for time spent in court. For example, an officer who attends court for more than one hour prior to the start of the work day gets credit for a minimum four hours of overtime. Similarly, officers who go to court after work receive a minimum of four hours overtime no matter how long they stay there. So if an officer gets off at 5, goes to court at 5:15, and is out by 5:50, they'd be compensated for four hours at time-and-a-half.

Such pay structures give incentives for police to arrest on trumped up charges so they can justify spending time in court and making time-and-a-half. Such incentives can result in false convictions, particularly when counsel is ineffective or nonexistent. That seems like a more important takeaway for me, anyway, than the ineffective assistance questions at the heart of the debate between the judges over Mr. Bowman's habeas writ.

*No public link: Accessed via subscriber-only Houston Chronicle archives.

Transparency bill will please prosecutors, police accountability advocates ... unions, not so much

With SB 783, State Sen. Juan "Chuy" Hinojosa has filed a rare example of legislation which should make police accountability activists and Texas prosecutors equally happy. The catch: Police unions will react as though their hair is on fire.

Can't please everybody, I suppose.

Disparate transparency
Hinojosa's bill addresses a 30-year old loophole created by the then-Democratic-controlled Lege to make police disciplinary files secret records in the 70 or so cities which have adopted the state civil service code (Ch. 143 of the Local Government Code). In the other 2,500+ Texas law enforcement agencies, those records are governed by the Texas Public Information Act and virtually the entire file is a public record, with a handful of exceptions involving personal privacy and other statutory limits.

In civil service cities, the personnel file always remains closed and the public can only see summaries of the underlying misconduct in cases where the officer is fired or suspended from work. Under the public information act, the overwhelming majority of documents in that file are public records.

This leads to an odd situation where, for example, police misconduct at the Austin PD must be concealed from the public if the officer is given a warning, reassignment, or any punishment less than a suspension. By contrast, at the Travis County Sheriff's office down the street, if a deputy engaged in the exact same misconduct, their file and the results of the investigation would all be a public record.

Similarly, Dallas and El Paso are the two largest cities which have not adopted the civil service code, and the public in both of these cities gets greater transparency about misconduct at their police departments than do nearby towns where police operate under civil service. In Dallas, this creates a situation where the largest city in the county is fully transparent about police misconduct, generating far superior reporting about the agency by the local press, while in most of the smaller suburban jurisdictions that surround it, most information about police misconduct is kept secret.

Making prosecutors happy
It's easy to understand why police accountability activists want these files open. Why would prosecutors be happy about it? To answer that question, one must recall the passage of the Michael Morton Act by the Texas Legislature in 2013, which strengthened requirements that prosecutors disclose exculpatory, mitigating, and impeachment evidence beyond minimalist requirements in federal precedents under Brady v. Maryland.

Under the Michael Morton Act, prosecutors are responsible for providing the defense with impeachment evidence about their witnesses, including police officers. But prosecutors aren't allowed access to police personnel files any more than are open records requestors under the civil service law. So situations have arisen where prosecutors are held responsible for failing to turn over impeachment evidence which was in possession of the police department but concealed from them by statute. It's considered an act of prosecutorial misconduct to fail to turn over impeachment evidence under the Michael Morton Act, so the secret personnel files put prosecutors between a rock and a hard place.

Perhaps the poster child case for this phenomenon was the Carlos Flores case in San Antonio. Flores pled no contest to assaulting a police officer. But it turned out the officer had beaten Flores severely and then charged his victim with assault. SAPD knew about the incident but did not inform prosecutors that the charges against Flores were a lie. An innocent man was convicted, and later exonerated. (Kudos to the Bexar DA Conviction Integrity Unit for taking a second look at the case.) No prosecutor wants to be blamed by the courts or the media for not turning over information to which they by law don't have access.

Expect nuclear response from police unions 
While prosecutors and police-accountability advocates can commiserate over this feel-good bill, one may expect police unions to react as though the coastal-based senator had suggested chunking babies into the sea. As they're doing in their pension fights, police unions will invoke the officers killed in Dallas and other in-the-line-of-duty deaths and pretend that somehow their sacrifice merits keeping the public in the dark about bad cops. With prosecutors on the other side of the issue, though, that case will be more difficult to make.

To understand this reaction, it's helpful to know a little about the nature of Texas police unions. Texas is a right-to-work state and unions are weak here. To the extent that police unions wield more power than most, it's because their primary function - over and above collective bargaining, which most Texas cities don't have - is essentially to provide Misconduct Insurance to their officers, promising to deploy a phalanx of experienced, hyper-aggressive attorneys and advocates to defend bad cops when they screw up. That's the main thing union dues pay for: When an officer gets in trouble, they may count on a level of legal assistance most criminal defendants couldn't dream of having.

So keeping police from being held accountable for misconduct is a primary police union function, and that includes keeping sustained misconduct out of the public record in case the officer ever wants to change jobs and apply to another department.

In reality, the other 2,500+ Texas law enforcement agencies which for generations have operated under the Public Information Act face no significant problems as a result, so the arguments for keeping these records secret are weak and self serving. That doesn't mean they won't be loud and overheated. Tis the nature of these sorts of debates.

Dallas eliminates special protections for officers after police shootings

Great news out of Big D, where police accountability activists scored a major victory this week. Reported the Dallas News (Aug. 18):

The Dallas Police Department has discontinued its policy of waiting 72 hours to interview officers involved in police shootings.

The announcement came late Thursday as part of the department's response to a 14-point list of demands made by the Next Generation Action Network. The group has railed against police brutality nationwide and called locally for more community oversight in officer-involved shootings.

"Effective immediately, every officer will be provided the same legal rights as any other citizen who is the subject of a criminal investigation," the department said in a statement. ...

The department's policy had given officers 72 hours before they were asked to make a formal statement to detectives in the special investigations unit, which studies all assaults and shootings involving police officers.

Regular readers may recall Grits blasted that policy when DPD enacted it in 2013, so this is welcome news. Grits can't immediately tell from the coverage if the change applies to all misconduct allegations or only shootings, but the former would be preferable to the latter.

The question immediately arises: Might other Texas jurisdictions follow suit? The answer is maybe, it's complicated.

Dallas Chief David Brown could do this unilaterally because  their negotiators did a better job retaining power over the disciplinary process in their "meet and confer" (read: collective bargaining) agreement with the local union than, say, their counterparts in Austin or Houston.

The Dallas agreement (pdf, p. 7-8) does not dictate that agency's disciplinary process the way Austin's does. Instead, it specifies that, "the City shall retain the sole, exclusive and vested right, prerogative, power and authority to ... establish, eliminate, modify, review, and enforce rules and standards governing job performance, personal conduct and appearance, uniforms and equipment, safety, training, education, attendance, discipline, and efficiency ... [and] the right to establish, abolish or modify processes and procedures for investigating and reviewing Officer conduct and complaints relating to that conduct."

Under their situation, the chief can make that decision unilaterally.

By contrast, Austin's meet and confer agreement (pdf) is much more detailed and dictates every detail of the disciplinary process. When Austin PD interrogates cops over misconduct, they receive an array of special protections which don't apply to average citizens.

For example, not less than 48 hours before an Austin police officer must give a statement to investigators about alleged misconduct, he or she must be provided with "a copy of the complaint(s)," as well as any additional allegations discovered by investigators which are not included in a complaint. The officer and their attorney may also "review the portions of any document(s) in which it is alleged that the Officer provided false, incomplete, inconsistent, or conflicting information, or in which it is alleged that the Officer omitted information in violation of any law or Department policy," as well as "any report, supplement use of force report, or other statement recorded or written by the Officer, setting forth particulars or facts regarding the operative conduct which is the subject of the allegation(s). In addition, officers are also "provided an opportunity to review any videotape, photograph or other recording of the operative conduct or alleged injuries, if any, which is the subject of the allegations if such a recording is within the possession or control of the Department."

In Houston, by contrast, their 48-hour rule is enshrined in HPD's stand-alone section of the state civil service code. There it dictates that officers receive notice 48 hours before being subjected to interrogation under the statute. But their meet and confer agreement goes further, letting officers see copies "of the statement/affidavit/complaint that serves as the basis for the complaint by the complainant at the time the 48 hour notice is given," as well as any "written statements or affidavits received or gathered by the investigative authority from witnesses, officers or supervisors obtained during the investigation before the officer's interrogation."

Imagine these same protections being applied to regular criminal defendants. Basically, the stuff the Michael Morton Act says most defendants get to see after they're formally charged, Austin and Houston police officers get to see before they're ever even questioned by investigators. As a former GOP DA candidate in Dallas, Toby Shook, said when their policy was enacted, "Police detectives often get very damaging statements from suspects shortly after the incident. At trial if the defendant’s story changes the prosecutor quickly argues to the jury that the defendant has changed his story and is lying." Police officers, however, are held to a far lesser standard and those sort of "gotcha" tactics don't apply to them.

Bottom line: the new Dallas rule is a good one but some other jurisdictions may be prevented from implementing something similar without revisiting the subject in their meet and confer contracts. Chief Brown could accomplish this quickly because past collective bargaining agreements did not tie his hands on officer discipline. Other departments which weren't as wise must wait until their contracts expire before it's possible to follow suit. When that happens, they should seek contract language closer to what's in the Dallas agreement.

RELATED: On the limits of enacting police reform through union contracts.

On the limits of enacting police reform through union contracts

San Antonio Mayor Ivy Taylor went to the meet-and-confer negotiating table this spring with seven requests related to police accountability, reported the Express-News (8/15). A city council member labeled two of the reforms "critical."

A police chief “needs to be able to rely on prior discipline to determine punishment,” the first request read, “so it may be presented to show progressive discipline in arbitrations.”

When an officer appeals his or her punishment, it triggers an arbitration process that proceeds like a trial. And arbitrators often reduce punishments; in the past seven years, they overturned or reduced five of 13 disciplinary rulings on appeal. All five were terminations, according to city officials.

The current contract limits how far back a police chief can invoke prior misconduct in arbitration: 10 years for drug and alcohol-related issues, five years for acts of “intentional violence” and just two years for all other misconduct.

“An entire officer’s discipline record should be allowable,” the request concluded.

The second reform: “Remove Requirement to Reduce Agreed Short Suspensions to Reprimands.”

Currently, suspensions of three days or less are automatically reduced to written reprimands after two years — a mechanism that [one city council member] says has amounted to “altering” police records.

“Suspensions need to remain on the record to accurately report an officer’s history and show progressive discipline in arbitration,” the city’s request to the union stated.

But the union "flatly refused to entertain the requests for reform" and so none of them got in.

Police union contracts have been targeted by the Black Lives Matter movement as a potential vehicle for improved accountability. However, this episode shows the limits of attempting to effect police reform in Texas through meet-and-confer negotiations, which in practice give the local police union veto power over any and all changes.

That said, there is more than one way to skin a cat. Austin had similarly witnessed officers frequently having their terminations overturned by an arbitrator until the department finally adopted a change for which local advocates had pushed for more than a decade: Creation of a disciplinary matrix in the APD policy manual which specifies punishment ranges for significant misconduct.

Arbitrators frequently overturn police officers' firings on the grounds that other, similarly situated officers were not punished in the same fashion. But a disciplinary matrix creates a range of prescribed punishments which arbitrators may presume to be reasonable.

The ability to make firings stick is a key part of confronting what's been called "a departmental culture which protects its own and is unwelcoming of supervision" in San Antonio. Keeping police misconduct on the record when the department makes personnel and promotion decisions helps keep bad apples from remaining on the force or even entering management just because they've hung around for a long time.

These are modest reforms at best but even they were too much for the union and the city didn't go to the mat on the issue the way they did on the Evergreen Clause. Certainly there was no effort to tie wage and benefit hikes to the union's acceptance of a (slightly) stronger disciplinary process.

It's possible the Mayor could have gotten more if there was significant community organizing backing her effort. As things stand, the public didn't know about her police accountability proposals until after they'd been rejected. Rallying the public in support of her proposals would have boosted the likelihood of success. Even so, I'm glad to see her making an effort when no one's looking. If she's serious about the topic, she'll find other opportunities to address it going forward.

Roundup: Policing the police

Here are a number of police accountability topics which merit Grits readers' attention:

Austin had one of the worst police union contracts in the nation when it comes to protecting bad cops who engage in misconduct, according to a new analysis from Campaign Zero, a spinoff project of the national Black Lives Matter movement. See Campaign Zero's comprehensive policy agenda.

Body cameras have been touted as a cutting-edge police accountability strategy, and Grits broadly supports their implementation. However the Daily Dot outlined the main concerns regarding this development - particularly hidden biases generated from the cameras' unique perspective - which have not been fully taken into account. See Debbie Russell's critique of Austin's new contract for body cameras, in which the city overpaid for equipment and failed to sufficiently respect the need for transparency when it comes to securing the public trust. Texas' law needs to be upgraded to allow for greater openness if the public is going to perceive cameras as a real reform effort.

Meanwhile, PBS Frontline had an excellent documentary this week on efforts to instill police accountability in Newark which has implications for every jurisdiction confronting these issues, particularly its focus on the challenge of changing internal police culture and officer attitudes. Really good stuff. 

This item at The Atlantic suggested that, "The criminal justice system just doesn’t possess the will, tools, or objectivity to consistently deliver justice for victims of police violence. ... But the idea of restorative justice provides a sorely-needed alternative."

Finally, Fusion has launched a series titled Arresting America, analyzing arrest records from 16,000 jurisdictions nationwide. Among their findings: Arrests for violent crimes such as murder, manslaughter, rape, and robbery made up only one percent of the total (~85,000 out of 8.5 million total arrests)

Texas courts illegally jailing motorists for unpaid tickets, and other stories

Here are several more items which merit Grits readers attention even if I don't have time this week to turn them into independent blog posts:

• Check out a top-notch story from BuzzFeed, of all places, with the teaser, "People in Texas get thrown behind bars just because they can’t afford their traffic tickets. That’s a disaster for people who are already struggling. It’s also completely against the law." The article delivers as promised, read it.
• See video of an hour-long Texas Tribune festival panel on criminal justice. About half of it was spent on culture-war questions - gun control and the death penalty - and about half on subjects where there was largely bipartisan agreement.
• Grits disputes the premise behind this headline: How does one measure whether there's a "shortage" of police when crime is down? Maybe there's just the right number and they need to be diverted from wasteful activities like responding to false home burglar alarms.
• Is it okay for a judge to tell petitioners to F*%# off if they do it in Italian slang? The Commission on Judicial Conduct issued a warning to a Fort Worth JP for such behavior.
• I'd forgotten that, in addition to the new state data published on police shootings, the Houston PD earlier this year launched a database which includes historical data.
• See coverage of the disgraced Hill County Sheriff and two of his top managers who were convicted of tampering with government documents, claiming officers received training when they had not. 
• Contract negotiations between San Antonio and the union broke down because the city refused to drop a lawsuit challenging an "evergreen" clause that keeps the old terms going for ten years after their meet-and-confer contract ends. Good for Mayor Taylor. That's a terrible, antidemocratic provision they should never have agreed to in the first place. It pointlessly ties the city's hands.

Should police get to review video before Internal Affairs interviews?

The policy of allowing police officers to view video from incidents involving complaints against them before being interviewed by Internal Affairs drew fire this week from an editorial in the Corpus Christi Caller-Times (9/24). which opened:

There are compelling arguments for and not many against letting police officers see video and hear audio before being interviewed by internal affairs. This is a new policy included in the contract approved earlier this month between the city and the police union, but it also is a national trend.

Perhaps the only meaningful argument against this policy just happens to be the big one — that it gives officers a special privilege not extended to persons of interest in a police investigation.

It's important to note the distinction between an internal affairs inquiry and a criminal investigation. An internal affairs investigation focuses on officers' behavior as employees answerable to their employer and to the public. That's a marked difference from an investigation into whether officers violated the law while on the job and should be charged with a crime.

But what if an officer ends up being investigated in both contexts? The officer has had the opportunity to get his or her story straight based on the video/audio evidence he or she was allowed to see and hear.

Needless to say, that's not an opportunity extended to civilians questioned in criminal investigations — even those who haven't attained the status of person of interest. The potential discrepancies between their stories and facts not revealed to them before being questioned, including video not shown to them, are considered part of the evidence-gathering — a valuable part because discrepancies can make someone appear guilty. Discrepancies can be portrayed as lies because sometimes they are.

That so-called game of gotcha is exactly what the proponents of the new video preview policy for officers say shouldn't be part of the internal affairs process. They want a level of fairness that isn't extended to civilians questioned by police.

The opinion piece concluded by decrying a similar provision in Texas' new body cam legislation, whose regulation of camera use Grits has also criticized.

A new state law providing grants for body cameras includes a provision that officers view a video before giving a statement. The law could be touted as an all-around victory for transparency. It encourages more body cameras and therefore more video evidence, and it is the pinnacle of openness with the involved officers.

But defense attorneys whose clients are civilians are duty-bound to ask, why them and not us? It doesn't take a legal scholar or an oracle to foresee one of these defense attorneys winning a Miranda-like victory at the Supreme Court level someday based on that question. "They didn't show me the video" could supplant "they didn't read me my rights" as a prosecution-killer.

The arguments in favor of police having this privilege are no different for anyone else.

Unfortunately, the paper's disapprobation comes too little, too late. The city and police union have already adopted the language governing bodycams in the recently signed meet and confer agreement, which would have benefited from media scrutiny as it was happening instead of after the fact. At this point, the Legislature could take up the matter before the City of Corpus gets the chance to revisit the issue, which can't happen until the meet-and-confer agreement expires.

Bad cops, bad puns, bad contracts, bad Democrats and other happy stories to cheer up your day

Here are several items which merit readers' attention even if I don't have time to blog on the topics:

• If coverage in the Express-News is indicative, a community forum on civil rights and policing in San Antonio didn't at all focus on the contract negotiations which just began between the city and the union. But that document and the state civil-service code which authorizes it govern SAPD disciplinary processes (read: what happens to cops who break the rules) to an arguably greater degree than the chief or DA. Campaign Zero has offered some thoughtful suggestions on reform provisions advocates should ask for in police contracts, many of which could apply to meet-and-confer contracts Texas.
• The screwups surrounding the case of Jerry Hartfield, a mentally ill man imprisoned in Texas  for 35 years after his conviction was overturned, are as mind boggling as they are banal. 
• Another suicide by an out of state motorist in a Texas county jail is being questioned by his family. This one likely won't receive the same attention as Sandra Bland. OTOH, without the uproar surrounding her case, one doubts it'd have been covered at all.
• Grits didn't realize they were still doing roadside cavity searches for drugs in Harris County in 2015. You learn something new every day. A bill passed this session and which goes into effect Sept. 1st would require a warrant for law enforcement to conduct body cavity searches. I wonder how many agencies will formally have to change their practices?
• The pun in this headline about bite mark evidence was as inevitable as it is inexcusable. See related coverage from Jordan Smith, formerly of the Austin Chronicle, and an op ed from the National Law Journal.
• Here's a reminder that Democrats sucked on criminal-justice policy in the '90s. Grits hasn't forgotten.
• Voters will decide bail reform in New Mexico.
• Here's a strident but justified call for more aggressive use of presidential pardon power. 
• Read Prof. Sam Gross on "The staggering number of wrongful convictions in America."

Austin Police Monitor candidates announced

Candidates for the Austin Police Monitor include some familiar names; see coverage from the Austin Chronicle. I'm ambivalent about the selection, for the same reasons that I opposed the final version of the original agreement creating the office. Negotiated terms hammered out between the City Manager and the police union in a "meet and confer" contract (which should be expiring any time now, if it hasn't already) turned the Austin Police Monitor into a toothless watchdog. I find it hard to justify its continuation in its current, neutered form. The office needs to be made truly independent and the veil of secrecy lifted that shrouds both the Monitor's work and the majority of police misconduct findings in Texas civil service cities.